INHERITANCE RIGHTS OF ILLEGITIMATE CHILDREN

ABSTRACT

Children born out of wedlock are generally referred to as “illegitimate.” Legal status and inheritance rights of illegitimate children have been a target of stigma, discrimination, and exclusion throughout civilizations. The following article traces the development of such rights from ancient legal frameworks such as Roman, Hindu, and Islamic law to modern global human rights standards. It also discusses how such constructs of legitimacy have influenced legal processes, with particular reference to the country of India. As has been seen within the country, there is a confluence of personal laws, legal determination, and constitutional factors that shape the rights of such children. Particular attention has been made within the country regarding differences in treatment under respective Hindu law, Muslim law, Christian law, and Parsi law. Another important area of consideration has been recent interpretations of such issues within the country. It also discusses the numerous international conventions available, such as the UDHR, ICCPR, and CRC, which stress equality and non-discrimination principles irrespective of the mode of birth. Even so, there is a lot to be accomplished within this sphere.

KEYWORDS: Illegitimacy, Inheritance, Succession, Recognition, Equality, Parentage, Lineage, Acknowledgement

INTRODUCTION

“There are no illegitimate children, only illegitimate parents” said by Leon R. Yankwich rightfully describes the dilemma of children born to such forbidden relationships over which they had no control.

 Illegitimacy is a status acquired at birth which characterises a child born out to parents who are not legally married to each other.[1]Such offspring carry an inherent stigma and were often denied not only social recognition but also legal rights and inheritance as the family lineage and marital legitimacy are still viewed as essential to establish entitlements. In ancient and medieval times, “bastard”, “dasiputra” and “love child” were some common terms used to refer illegitimate children and were subjected to social and legal discrimination across many civilizations. In Roman law, they were denied inheritance completely, similarly, the European feudal system and common law traditions in the UK have excluded them from succession to maintain lineage within the family. In Hindu and Islamic jurisprudence, although in some cultures they had given recognition in the society, but legal rights were still in question. In all these civilizations, the status of a child’s birth was the basis for treating them unequally before the law, which as the society evolves is being questioned as a valid reason for the forfeiture of rights of illegitimate children. As the society evolved, the concept of equal protection of rights, non-discrimination based on birth advanced and a liberal approach towards inheritance rights has been followed.

HISTORICAL BACKGROUND

In ancient legal framework, such as Roman law, a child born outside a justa matrimonia-which denotes lawful marriage referred to as “fillus nullius” which means “child of no one or an illegitimate child “. Such children were not recognized as legal heirs and were not given the right to have a share in parental property unlike children born out of lawful marriage. The testamentary succession was allowed to some extent but was strictly regulated. The medieval Europe strongly reinforced the Roman ideas in their inheritance laws, correspondingly, they were denied inheriting property titles and entitlements. The only way an illegitimate child and be accepted was by legitimation per subsequens matrimonium i.e. if the parents of the child later get married and the law allowed such union. England strictly followed the doctrine of fillus nullius, where the illegitimate children were not given recognition, rights of inheritance, testamentary succession even after being recognised by father before the Legitimacy Act of 1926[2]. The Hindu jurisprudence gave higher importance to sons of lawful wife, followed by others. The Dasiputra in the mitakshara school have limited rights but comparatively held a better position in the matter of inheritance than illegitimate offspring in many other ancient legal systems. Manusmriti (Chapter 9, Verses 179-187) and the Mitakshara commentary (by Vijneshwara, 11^th century) explain that such sons might inherit their mother’s estate and sometimes a half share from their father, usually not equal to legitimate sons. Under Quranic commandments, the inheritance was permitted only through accepted “nasab” which implies through marriage or acknowledgement. The illegitimate children could only inherit from the mother and maternal lineage.

CURRENT LEGAL POSITION OF ILLEGITIMATE CHILDREN WORLDWIDE

Globally, the status of illegitimate children has significantly improved after the reforms influenced by international human rights standards, particularly, Article 1 of the Universal Declaration of Human Rights (UDHR) that states “all human beings are born free and equal in dignity and rights” while Article 2 and 7 prohibit discrimination, including based on birth and emphasise on equal protection of rights of everyone.[3]. The International Covenant on Civil and Political Rights (ICCPR), 1966, in Article 26, further guarantees that “all human beings are equal before the law and are entitled to equal protection of the law without discrimination”[4]. More significantly, the United Nations Convention on the Rights of the Child (CRC), 1989, in Article 2 of the CRC obliges states to respect and ensure the rights of every child without discrimination of any kind, irrespective of the child’s or his or her parents or legal guardian’s race, colour, sex, language, religion, political, or other opinion, national, ethnic or social origin, property, disability, birth or other status.[5]

Marckx v. Belgium, decided in 1979, the European Court of Human Rights condemned all legislation that makes it impossible for children not born in wedlock to inherit from their mothers and female relations. They ruled it out as a violation of Articles 8 and 14 of the European Convention on Human Rights. Following this and many similar rulings, all European civil codes have removed the nicety of legitimate and illegitimate children.

CURRENT POSITION IN INDIA

The question of inheritance rights of Indian children born outside marriage has traditionally been shrouded in an intricate web of personal laws, secular legislations, and changing judicial perceptions. Historically, the grant of equal inheritance rights was denied to children born outside a formally recognized marriage, since these reflected societal sanctions against illegitimacy. But over the years, Indian law has faced immense reform, especially about Hindu and Christian personal law, though challenges still exist in Muslim law and others. The increasing judicial interpretation manned by the constitutional ideals of equality and non-discrimination has emphatically inspired the transformation in law as standing today.

UNDER HINDU PERSONAL LAW

In relation to Section 16 of the Act of 1955, with regard to the rights of the children of a void/voidable marriage under the Hindu Marriage Act of 1955, such children have been accorded the status of legitimate heirs of their parents. To put it precisely, Section 16(1) and Section 16(2) have been made in a fashion that the rights of such children have been legally granted to inherit the self-acquired properties of their parents. More specifically, Section 16(1) and Section 16(2) have been enacted in such a way that the rights of such children have been recognized for inheriting the self-acquired properties of their parents. Further, Section 16(3) has created a differential stand regarding inheriting coparcener properties[6].

In Bharatha Matha v. R. Vijaya Renganatha[7], The Supreme Court held that the child is entitled to acquire only the self-acquired properties of the parents but not the ancestral properties.

The trend has been reversed in a more progressive judgment in Revanasiddappa v. Mallikarjun [8] , where more significance has been given to a wide and liberal interpretation of Section 16 in order to make sure that children of a void marriage are not denied a share in inheritance. the Supreme Court clarified that a child born of a void or voidable marriage can inherit only the self-acquired property of the parents, but not ancestral or coparcenary property.

UNDER MUSLIM PERSONAL LAW

Children born out of wedlock, particularly those born from an extramarital relationship due to zina, may get a lesser share of inheritable property and, more often than not, do not have the right to it by Muslim personal law. The child has been denied inheritance from the father’s side and is only entitled to a share in the property from the mother and her maternal relatives. This again is based on the Hanafi school of Islamic jurisprudence, which is mostly followed in India.

In the case of Mohd. Allahdad Khan v. Mohd. Ismail Khan 1888[9], The Allahabad High Court held that an illegitimate child has no right to inherit from the father but can inherit from the mother’s side. This judicial position reflects the traditional view within Muslim law that denies illegitimate children the right to inherit paternal property.

Whereas there are no fresh reforms on the subject, nor any recent legal discourses, nor, for that matter, any pressure from constitutional dictates, the inheritance rights of illegitimate children under Muslim law are still limited. Arguably, reforms on this aspect are sorely needed. The principle of equality before the law challenges the traditionally exclusionary practices

UNDER INDIAN SUCCESSION ACT

Both the personal laws applicable to the Christians as well as the Parsis follow the Indian Succession Act of 1925. This Act provides more equality with respect to the sharing of the legacy. There is no differentiation between children begotten in or out of wedlock. Even here, the test of legitimacy lies in the establishment of the paternity of the child. Section 27 of the Indian Succession Act, makes all children eligible to inherit from an intestate parent irrespective of their legitimacy[10]. The law itself does not in fact distinguish between legitimate and illegitimate children, but the question of the establishment of paternity has tended to cause functional problems in those cases where children were born outside wedlock.

CONSTITUTION

The only difference in the Indian legal system is that it emphasizes the aspect of equality and non-discrimination based on the principles given in the Constitution of India. The Constitution of India has articles 14 and 15 that offer equality to all its citizens in every aspect of law and also prohibit discrimination among the citizens based on their birth. The Constitution of India has influenced the interpretation of the laws of inheritance pertaining to illegitimate children.

UNRESOLVED BARRIERS TO EQUALITY IN INHERITANCE RIGHTS

While judicial reforms and evolving court interpretations have revolutionized the cause of equal protection of rights for illegitimate children still substantial gaps persist. For instance, under Muslim personal law, the exclusion of illegitimate children from paternal inheritance remains a significant legal and social issue. Similarly, the distinction between self-acquired and ancestral property under Hindu law continues to create inequality, particularly in cases where children born of void marriages are denied full inheritance rights.

Similarly, the Indian Succession Act adopts a liberal approach towards the Christian and Parsi communities. However, such an approach is required to be cleared regarding the ascertainment of paternity in children born out of wedlock. There is a need to have a more uniform approach by the judiciary based on constitutional principles while applying human rights to ensure equality among children irrespective of the circumstances in which they were born.

CONCLUSION

Laws related to inheritance have generally reflected stigma surrounding children born out of wedlock, excluding them from equal status and recognition. While international human rights instruments promote equality and non-discrimination, most legal systems, including India’s, have not yet succeeded in eradicating such historical inequalities. Progress has been made through reforms and judicial recognition of such children’s rights, yet inconsistencies across personal laws continue to create gaps in the protection of such rights,

To uphold the principles of justice and equality, it is substantial that legal frameworks evolve further with correspondence to legislative change, unification of the personal laws, and a resolve to ensure that all children, irrespective of their birth conditions, have equal legal rights and opportunities. Only then can one truly claim to uphold the ideas of justice and equality in modern inheritance law.

REFERENCES 

1. Aron, A Study On The Property Rights Of Illegitimate Children In India, https://legalserviceindia.com .
2. Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors (2010) AIR 2010 SUPREME COURT 2685 https://indiankanoon.org.
3. Case Of Marckx v. Belgium (Application no.6833/74), https://hudoc.echr.coe.int
4. Convention on the Rights of the Child, https://ohchr.org.
5. International Covenant on Civil and Political Rights, https://ohchr.org
6. Muhammad Allahdad Khan And Anr. vs Muhammad Ismail Khan And Ors. ILR 10 All 289 https://indiankanoon.org
7. Radhika Yadav, Illegitimacy: An Illegitimate Concept, https://manupatra.com .
8. Revanasiddappa v. Mallikarjun (2011) 2011 AIR SCW 2447, https://indiankanoon.org.
9. Universal Declaration Of Human Rights, https://un.org

[1] Radhika Yadav, Illegitimacy: An Illegitimate Concept, https://manupatra.com (last visited on 21^th Jan 2026).

[2] Aron, A Study On The Property Rights Of Illegitimate Children In India , https://legalserviceindia.com (last visited on 19^th Jan 2026).

[3] Universal Declaration Of Human Rights, https://un.org ( last visited on 21^th Jan 2026).

[4] International Covenant on Civil and Political Rights, https://ohchr.org (last visited on 22^th Jan, 2026).

[5] Convention on the Rights of the Child, https://ohchr.org (last visited on 21^th Jan, 2026).

[6] Supra note 1

[7] Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors (2010) AIR 2010 SUPREME COURT 2685 https://indiankanoon.org (last visited on 20^th Jan 2026)

[8] Revanasiddappa v. Mallikarjun (2011) 2011 AIR SCW 2447, https://indiankanoon.org (last visited on 22^th Jan 2026)

[9] Muhammad Allahdad Khan And Anr. vs Muhammad Ismail Khan And Ors. ILR 10 All 289 https://indiankanoon.org (last visited on 19^th Jan 2026)

[10] Supra note 2